Opinion

Rowell v. Bowling

  • 197 N.C. App. 691
  • 678 S.E.2d 748
  • 2009 N.C. App. LEXIS 1089
Court
Court of Appeals of North Carolina
Filed
Jul 7, 2009
Status
Published
Author
Jackson
On the bench
Hunter, Robert, Wynn, Jackson
Cited by
8 cases
Authority
More cited than 6.5%

holding that the doctrine of res ipsa loquitur was not applicable where the plaintiff specifically alleged that a particular incision made by the defendant doctor to the plaintiff’s left knee was the exact cause of her injury

How later courts described this case

  • holding that the doctrine of res ipsa loquitur was not applicable where the plaintiff specifically alleged that a particular incision made by the defendant doctor to the plaintiff’s left knee was the exact cause of her injury
  • stating a trial court’s review of a Rule 9(j) motion is a question of law, and the Court is not to inquire into the evidence in the light most favorable to plaintiff
  • “Normally, in [medical malpractice] actions, both the standard of care and its breach must be established by expert testimony.” (internal quotation marks and citation omitted)
  • internal quotation marks, quotation marks, citation, and alterations omitted

Written by the judges who cited it.

The opinion

JACKSON, Judge,

dissenting.

I must respectfully dissent from the majority’s decision to invoke Rule 2 to reach the merits of plaintiff’s appeal. For the reasons stated below, I would dismiss.

Rule 28 of the North Carolina Rules of Appellate Procedure requires an appellant to include in the body of his argument “citations of the authorities upon which the appellant relies.” N.C. R. App. P. 28(b)(6) (2007). “The function of all briefs ... is to define clearly the questions presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon. Review is limited to questions so presented in the several briefs.” N.C. R. App. P. 28(a) (2007). “Assignments of error ... in support of which no . . . authority [is] cited, will be taken as abandoned.” N.C. R. App. P. 28(b)(6) (2007).

Plaintiff devotes a single page to her sole argument on appeal. That argument is devoid of any supporting legal authority whatsoever. Therefore, as noted in the majority opinion, plaintiff’s argument is subject to dismissal. However, rather than dismissing the argument, the majority addresses it under the auspices of Rule 2.

Pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, the appellate courts may excuse a party’s appellate rules violations when necessary to “prevent manifest injustice to a party” or to “expedite decision in the public interest.” N.C. R. App. P. 2 (2007). However, Rule 2 is to be invoked “cautiously.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 196 , 657 S.E.2d 361, 364 (2008). In Dogwood, our Supreme Court reaffirmed “prior cases as to the ‘exceptional circumstances’ which allow the appellate coqrts to take this ‘extraordinary step.’ Id. (citing State v. Hart, 361 N.C. 309, 315-17 , 644 S.E.2d 201, 205-06 (2007); Steingress v. Steingress, 350 N.C. 64, 66 , 511 S.E.2d 298, 299-300 (1999)).

*699 I do not believe this case presents an “exceptional circumstance” warranting the “extraordinary step” of invoking Rule 2. No “manifest injustice to a party” will be prevented by invoking Rule 2; no “decision in the public interest” will be expedited. Accordingly, I would dismiss the appeal.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.